Mahender Singh vs Central Warehousing Corporation
1995 Latest Caselaw 89 Del

JUDGMENT

C.M. Nayar, J.

(1) The present Appeal arises out of the judgment dated 20thOctober, 1984 of Additional Senior Sub Judge, Delhi. The learned Judge allowed the appeal of the respondent and set aside the judgment and decree dated 3/10/1983, passed by Sub Judge 1st Class, Delhi.

(2) The brief facts of the case are that the appellant was appointed to the post of Superintendent of the respondent Corporation vide order dated 4th May, 1978. He was put on probation and it was specified in the letter of appointment that the services of the appellant will be governed by Central Warehousing Corporation(Staff) Regulations, as in force from time to time. The relevant provisions ofregulations, which are necessary for the purpose of decision of this appeal are Regulations 7 and 10. Regulation 7 deals with probation and Regulation 10 deals with termination of service and the same may be reproduced as follows: "7.PROBATION(i) Every employee shall, on appointment to any post, be on probation in that post for a period of one year .commencing from the date of appointment.Provided that such period may be further extended for a period not exceeding one year in all at the discretion of the appointing authority.Provided further that any continuous sc. vice rendered by an employee immediately before being placed on probation in a post may be counted towards the probationary period.(ii) Nothing in this regulation shall apply to the post of Managing Director or persons employed on deputation from the Central Government or any State Government or an Institution.10. Termination Of Service By The CORPORATION;(1) The Corporation may, at any time and without assigning any reasons,terminate the services of any temporary employee after giving onemonth's notice or one month's pay in lieu thereof. p=09(2) The Corporation may terminate the services of any regular employee after giving three month's notice or three months' pay in lieu thereof.(3) The Corporation may terminate the services of an employee other than the Managing Director by giving notice for a period less than that specified in sub-regulations (1) and (2):Provided that the Corporation shall give to an employee whose services are so terminated, pay for the period by which the notice actually given falls short of the specified period.(4) The power to terminate the services of employees under sub-regulation(1) or sub-regulation (2) shall be exercised by the respective appointingauthorities.(5) Nothing contained in this regulation shall effect the right of the Appointing Authority to retire, remove or dismiss an employee without giving notice or pay in lieu of notice in accordance with the provisions of Chapter-V."

(3) The appellant, as stated above, was appointed on probation on 4/05/1978. He was to work on probation for a period of one year from the date of appointment which was extendable for a period not exceeding one year, as provided in Regulation 7. The appellant was put on probation for a period of one year w.e.f. 24/06/1978, when he joined the service. It was averred in the plaint that there was a theft in the warehouse at Dasna. It was further alleged that the appellant himself lodged the necessary F.I.R. under intimation to the Department. The case was closed for lack of evidence. It was reported by the Regional Manager that the appellant was involved in this theft of 47bags of wheat and the Superintendent of Police also stated in his report that the appellant was responsible for this loss. The respondent extended the period of probation by order dated 5/03/1980. This order is reproduced as under: "CENTRALWAREHOUSING CORPORATION(A Govt Of India UNDERTAKING)'DEEPALI'92, Nehru Place,New Delhi-110 019No.CWC/I-4874/Estt. Dated 5/03/1980MEMORANDUMThe undersigned is directed to inform Shri Mahendra Singh, Superintendent,Central Warehouse, Dasna as his performance has not been found satisfactory,his probation period is extended by one year i.e. up to 23.6.80. He is advised to show improvement in his work and conduct.387Sd/-(D.N.Sagar)Deputy Manager(Personnel)ToShri Mahendra Singh,Superintendent,Central Warehouse,Dasna.Copy to: The Regional Manager, Cwc, Ro, Lucknow."

The appellant on the same date was also communicated adverse remarks in the special confidential report for the period ending 23/06/1979. The impugned order of termination was passed on 19/06/1980 and the same reads asfollows: "NO.CWC/I-4874/ESTT.dated 19/06/1980ORDERThe services of Shri Mahendra Singh, Supdt. Central Warehouse, Dasna are hereby terminated under Regulation 10(1) of the Central Warehousing Corporation (Staff) Regulations, 1966 with immediate effect.2. He is being paid one month's pay in lieu of one month's notice.Sd/-(A.N.LALLER)For Managing Director19.6.1980

(4) The appellant felt aggrieved by the impugned order of termination and filed a suit in the court of Senior Sub Judge Delhi for declaration that the order of termination dated 19/06/1980 is illegal and ultra vires and prayed for relief of re-instatement with consequential benefits of salary etc. The suit was contested by the respondents and written statement was filed. It may be relevant to refer to the plea of the respondents, as contained in paragraphs 6,9 and 11 of the written statement and the same read as follows: "6.Allegations of para 6 of the plaint, as stated there, are denied. It is submitted that during the extended period of probation, it was reported by the Regional Manager that the plaintiff was involved in one theft case of 47 bags at Dasna and the Superintendent of Police had also stated in his report that Shri Mahendra Singh was responsible for the theft of 47bags of wheat. But due to insufficient evidence, the case could not be filed against him in the Court. He further recommended that the department may take necessary action against him. All the allegations of this para being false and distortions of fact are emphatically denied.9. The allegations in paragraph 9 of the plaint are denied. It is, however,not denied that the plaintiff's services were terminated by an orderdated 19.6.80. It is submitted that the plaintiff being on probation,having been not found satisfactory for a highly responsible job, his services were terminated. The termination order is perfectly legal andvalid. The plaintiff is unncessarily, unjustifiably treating it as a wrongful dismissal just for the purpose of creating a cause of action.11. The contentions raised in para 11 of the plaint are denied. The order of termination of his services being without any stigma, is perfectly legal and valid. By no stretch of imagination order of termination of his services can be called as an order of dismissal. The plaintiff is himself unnecessary and unjustifiable giving a colour to an order of terminations implicates by falsely describing it as an order of dismissal just for the purpose of making a case against the Corporation. It is denied that the plaintiff had completed successfully the period of probation and that the plaintiff was the regular employee."

The suit was tried by the Court of Sub Judge 1st Class, Delhi and on pleadings of the parties, the following issues were framed: "1. Whether the plaintiff was regular employee of the Defendants? If so, to what effect? opp2. Whether the impugned order tantamounts to order of dismissal from service or it is termination of service simpliciter? Parties3. Whether the impugned order is null, illegal and ultra vires? OPP4. To what relief, the plaintiff is entitled? OPP"

(5) The Trial Judge disposed of issues 1 and 2 and held that the appellant was a regular employee of the respondents and the impugned order of termination ant amounts to the order of dismissal from service. He has further held that there was nothing on record to suggest that the appellant was in any way responsible for the theft and his removal from service on this basis, without affording an opportunity of being heard, casts stigma and is against the principles of natural justice and is bad in law. The suit was decreed and the impugned order of termination dated 19/06/1980 was set-aside and the respondents were directed to re-instate the appellant to the post of Superintendent with all consequential benefits. The respondents felt aggrieved by this order and filed an appeal which was disposed of by the Additional Senior Sub Judge Delhi by order dated 20.10.1984. The learned Judge set-aside the order of the Trial court and dismissed the suit of the appellant. He has reversed the findings of the Trial Court and held that the appellant cannot be said to be a regular employee of the respondents and he was merely an employee on probation. The impugned order of termination does not cast any stigma on the appellant and it was not an order of dismissal but was an order of terminations implicates. The provisions of Article 311 of the Constitution of India were,accordingly, not attracted. It is further held "that there is no evidence on the record to prove that the termination was based on the report of the police and the appellant himself has deposed that the termination came while the investigation of the police was still pending. He has not deposed or produced any document to show that the police had returned a finding against him before the order of termination waspassed." The Court considered the law on the subject and referred to the judgments of the Supreme Court in The State of Bihar v. Gopi Kishore Prasad, Samsher Singh v. State of Punjab and Another, Mr 1974 Supreme Court 2192;and 017 and Natural Gas Commission and Others v. Dr. Md. S. IskanderAli, .

(6) The appear of the respondents was, accordingly, allowed and the judgment of the Trial Court was set-aside. The appellant felt aggrieved by the judgment of the Appellant Court and has filed the present second appeal in this Court for restoration of the order passed by the Trial Court on 3.10.1983. The appeal was admitted by order dated 19.2.1985 and the following substantial questions of law were framed: "1)Whether under the relevant regulations the appellant would be deemed to have become a regular employee on the expiry of the probation period of one year from the date of his joining service?2. Whether the-right to extend the probation period can be exercised several months after the expiry of the original probation period?3. Whether the termination of service of the appellant was by way of punishment and against principles of natural justice and was liable to be quashed ?4. Whether on the evidence on the record the appellant would be deemed to have been dismissed from service by the Managing Director ? If not,its effect."

(7) The learned Counsel for the appellant has contended that the impugned order of termination dated 19/06/1980 was based on one incident of theft of which the appellant was accused. The period of probation was subsequently extended by order dated 5/03/1980 before the impugned order of termination was passed. The adverse remarks were communicated to the appellant for the first time on 5/03/1980 and then in July, 1980 when the services of the appellant had already been terminated. In view of the background as stated, the learned Counsel has contended that the order of termination is stigmatic in nature and the same cannot be sustained in the eyes of law. He has further referred me to paragraph 6of the written statement which has already been cited in the earlier part of the judgment wherein it is conceded by the respondents that the termination was as a result of the charge of theft which was levelled against the appellant and the same was based on a police report. He has argued that the police subsequently cleared the name of the appellant and, in any case, the termination of the appellant is punitive in character and the order could not be passed without affording an opportunity to the appellant to show cause. The counsel has strongly relied on the judgments of the Supreme Court as reported in Samsher Singh v. State of Punjab and Another , Anoop Jaiswal v. Government of India and Another and Farnail Singh and others v. State of Punjab and Others to reiterate the proposition that since the impugned order of termination, which has been inflicted on the appellant, was on the basis of the charge of theft against him, the same is bad in law as no reasonable opportunity has been given to the appellant to defend and the order of discharge is violative of Article 311(2) of the Constitution of India.

(8) The learned Counsel for the respondents, on the other hand, has contended that the services of the appellant were not terminated on the basis that the appellant was involved in theft case and as that case could not proceed due to insufficient evidence he was proceeded against departmentally. He has argued that the foundation of the impugned order of termination was the performance of the appellant, which was consistently bad. In this situation it was open for the respondents to discharge the appellant from service and this does not, in anymanner, cast stigma nor the action is punitive. He has relied upon the judgments of the Supreme Court as reported in Oil and Natural Gas Commission and Others v.Dr. Md. S.Iskander Ali, ; The Union of India and others v. P.S.Bhatt, Air 1981 Supreme Court 957; Unit Trust of India and Othersv. T. Bijaya Kumar & Another, Jt 1992 (6) S.C. 82 and M.Venugopal v. The DivisionalManager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh and Another . These cases have been cited to reiterate and canvass the proposition that the termination simpliciter of probationer for unsatisfactory performance is not an order of punishment which will attract Article 311 of the Constitution of India. There was no question of giving a hearing before the termination of service in this situation. The services of the probationer can be terminated after making an overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service.

(9) I may now deal with the first question, as to whether, the appellant can be treated as a regular employee of the respondents. The statutory Regulations of the Corporation have been produced before me. Regulation 7 deals with probation and it is stated in the proviso to Sub-section (1) that the probation period may be further extended for a period not exceeding one year in all at the discretion of the Appointing Authority. The appellant was placed on probation in the first instance on 24/06/1978, when he joined his duty. The subsequent extension was made on 5/03/1980, for a further period of one year. The learned Additional Senior Sub Judge is quite correct to hold that the amendment which was made on 20/11/1974, giving powers to the Appointing Authority to extend period of probation was inadvertently not noticed by the Trial Judge and he only perused the incomplete regulation which did not provide for such extension. The probation of the appellant was rightly held to be extendable by a further period of one year. The appellant,therefore, could not be said to have been confirmed unless a specific order was passed to this effect. In this connection, reference may be made to the judgment of the Supreme Court in Municipal Corporation, Raipur v. Ashok Kumar Misra, which has clearly held that there cannot be any deemed confirmation after the expiry of initial period of one year. The Court was considering the provisions of Rule 8 of the M.P. Government Servants' General Conditions of Service Rules, 1961, and the relevant portion of this Rule may be reproduced asunder: "8.Probation-(1) A person appointed to a service or post by direct recruitment shall ordinarily be placed on probation for such period as may be prescribed.(2) The Appointing Authority may, for sufficient reasons, extend the period of probation by a further period not exceeding one year.Note: A probationer whose period of probation is not extended under this sub-rule, but who has neither been confirmed nor discharged from service at the end of the period of probation shall be deemed to have been continued inservice, subject to the condition of his service being terminable on the expiry ofa notice of one calendar month given in writing by either side."The findings of the Court are contained in paragraph 6 of the judgment. The relevant portion can be reproduced as follows:"Exercise of the power to extend the probation is hedged with the existence of the rule in that regard followed by positive act of either confirmation of the probation or discharge from service or reversion to the substantive post within a reasonable time after the expiry of the period of probation. If the rules do not empower the Appointing Authority to extend the probation beyond the prescribed period, or where the rules are absent about confirmation or passing of the prescribed test for confirmation of probation then inaction for a very longtime may lead to an indication of the satisfactory completion of probation. But in this case Rule 8 expressly postulates otherwise. The period of probation is subject to extension by order in writing for another period of one year. Passing the prescribed examinations and successful completion of probation and to make an order of confirmation are condition precedent. Mere expiry of the initial period of probation does not automatically have the effect of deemed confirmation and the status of a deemed confirmation of the probation. An express order in that regard only confers the status of an approved probationer. We are of the view that note to sub-rule (2) read with sub-rule (6) of Rule8 manifests the legislative intent that confirmation of the probation of the. respondent would be made only on successful completion of the probation and the passing of the prescribed examinations. It is not the respondent's case that he passed all the examinations. He shall be deemed to be continued on probation. Before confirmation the Appointing Authority is empowered to terminate the service of the probationer by issuing one calendar month's notice in writing and on expiry thereof the service stands terminated without any further notice....... "

The same proposition of law has been stated in the judgments of the Supreme Court in Partap Singh v. Union Territory of Chandigarh and Another, and Dhanibhai Ramjibhai v. State of Gujarat, .

(10) There is, therefore, no infirmity in the findings of the Appellate Court that the appellant cannot be said to be a regular employee of the respondent Corporation and he was an employee merely on probation. The finding of the Trial Court in this regard was correctly reversed.

(11) The next question, which arises is as to whether the termination of the appellant was stigmatic in nature and was not an order of termination simpliciter.I have carefully perused the judgments, which have been cited by learned Counsel for the parties.

(12) In Samsher Singh v. State of Punjab and Another, (supra) the facts indicated that the Inquiry Officer was nominated by the Director of Vigilance and he recorded the statement of witnesses behind the back of the appellant, a member of the subordinate judicial service. The enquiry was to ascertain the truth of allegations of misconduct. Neither the report nor the statements recorded by the EnquiryOfficer reached the appellant. The High Court accepted the report of the Enquiry Officer and wrote to the Government that in the light of the report the appellant was not a fit person to be retained in service. The order of termination on these facts was held to be clearly by way of punishment as the services of the appellant were terminated on the basis of the report of the Enquiry Officer with which he was never confronted with. The order of termination was held to be violative of Article 311 andwas, accordingly, set-aside.

(13) The Supreme Court in Anoop Jaiswal v. Government of India and Another(supra) also laid down the proposition that the order of discharge may be noncommittal, the cause for the order cannot be ignored. In that case there was some incident and the appellant was considered to be one of the ring leaders and it was held that the discharge was based on the said incident. In that context, the order of discharge was held to be punitive in character and "the court reached the conclusion that the alleged act of misconduct was the cause of the order and that but for the incident it would not have been passed then it was inevitable that the order of discharge will fall to the ground as the appellant had not been afforded a reasonable opportunity to defend himself, as provided in Article 311(2) of the Constitution. The law as laid down in Jarnail Singh and others (supra) reiterates the same proposition.

(14) I may now advert to the facts of the present case. The appellant was put on probation for a period of one year on 24/06/1978. The said period expired on 23/06/1979. The record has been produced before me and there is no doubt that one of the Regional Managers had recommended that his probation be closed. There wasno report from the concerned officer of the Corporation for the period beginning from June 26, 197 8/03/1979 as the appellant had worked under the said Regional Manager. The said report was called for on 28/08/1979 and was submitted on 6/12/1979. On consideration of the report the period of probation of the appellant was extended for a further period of one year by orderdated 5/03/1980. The appellant was also communicated certain adverse remarks on the same date. The extended period of probation was to expire on 23/06/1980and another report was called for to assess the appellant. The respondents did not find any improvement in the performance of the appellant and, accordingly, his services were terminated vide clause 10(1) of the Regulations on 19/06/1980. There cord does not indicate that the impugned order of termination was passed by way of punishment. There was an incident of theft in which the appellant was initially implicated and it is now stated that subsequently he was cleared. The respondentshave, however, stated that the said incident was not the foundation of the order of termination. The respondents have contended in the written statement that the appellant was on probation and having been not found satisfactory for a highly responsible job, his services were terminated. The finding that there was no evidence on the record to prove that the termination was based on report of the police does not suffer from any illegality which calls for interference in second appeal.

(15) In Unit Trust of India and Others v. T. Bijaya Kumar & Another (supra) the Supreme Court held that where the facts are simple, namely, during the probation period the performance of the employee was watched and was not found to be satisfactory, despite he having been given an opportunity to show improvement and the Management was constrained to put an end to his service there was no occasion for the Court to interfere as the Authorities had acted within the framework of the rules and law. In the subsequent judgment M. Venugpal v. Divisional Manager(supra) the Court also reiterated the same proposition. Paragraph 15 of this judgment reads as follows: "EVEN under general law, the service of a probationer can be terminated after making overall assessment of his performance during the period of probation and no notice is required to be given before termination of such service. This aspect has been examined by this Court in the case of The Governing Council of Kidwai Memorial Institute of Oncology, Bangalore v. Dr. Pandurang Godwalkar, , where it has been pointed out that if the performance of the employee concerned during the period of probation is not found to be satisfactory on overall assessment, then it is open to the competent authority to terminate his service."

(16) The Appellate Court has strongly relied on the judgment of the SupremeCourt as reported in 017 and Natural Gas Commission and Others v. Dr. Md.S. Iskander Ali, . In that case, the probationer was appointed in a temporary post and his short history of service showed that his work had never been satisfactory and he has not been found suitable for being retained inservice. The Authorities even started an enquiry against him which was subsequently dropped. The order of termination was not held to be punitive in nature.

(17) In Union of India and Others v. P.S. Bhatt (supra) the facts indicated that even if the conduct of the employee in indulging in loose talks and filthy and abusive language may be considered to be the motive or the inducing factor which influenced the authorities to pass the impugned order, that order cannot be said to be byway of punishment. The proposition that the services of the probationer can be terminated in accordance with the rules as the very purpose of placing a person on probation is to try him during probation period and assess him suitably to a job in question has been reiterated in the above mentioned cases.

(18) The present second appeal has been filed to impugn the judgment of the Appellant Court. The learned Judge has given his clear findings that the probation period was extended for want of satisfaction of the work of the appellant. There are letters on the record showing that even in the confidential reports, the report about his work was not satisfactory'. I have also summoned the file of the respondents and perused the relevant documents including the confidential rolls. There is no doubt that there was a police case relating to theft in which the appellant on re-appraisal was ultimately held to be not involved but an overall assessment as made by therespondent leaves no manner of doubt that the work of the appellant was found notsatisfactory. It will also not be open for this Court to re-assess the finding of fact and come to a contrary conclusion by re-appraising the assessment made by the respondents in respect of the work and performance of the appellant. Therefore, it cannot be said that the police case was the foundation of the order of termination.The appeal as a consequence is dismissed. There will be no order as to costs.